JUDGMENT

Lim Hock Leng JCA:

Introduction

[1] The Respondents/Plaintiffs' bungalow at 50 Jalan Taman Pantai, Kuala Lumpur, was damaged by demolition/construction works carried out by their neighbours in 2009.

[2] They sued their neighbours (the 1st and 2nd Defendants) and their neighbours' architect, contractor, and consultant engineer (the 3rd, 4th and 5th Defendants) for negligence.

[3] The litigation has a long and chequered history but the appeal before us is by the 5th Defendant/Appellant alone.

[4] The appeal is against the decision of the learned HCJ Nik Hasmat Binti Nik Mohamad J on 1 November 2023.

[5] The learned HCJ had allowed the Plaintiffs' claim for reassessment of damages against the 5th Defendant with costs of RM5,000.00 subject to payment of the allocatur fee, as follows:

i. loss of rental/loss of use of the bungalow - RM2,171,570.00

ii. repair and rectification of the bungalow - RM1,171,012.00

iii. aggravated and/or exemplary damages - RM300,000.00

[6] The learned HCJ did not allow the claims for mental distress and hardship, and costs of moving back to the bungalow.

[7] The guiding principle in an appeal against a reassessment of damages is that there ought not to be any appellate intervention unless the Court below has acted on a wrong principle of law, and the amount awarded is either so extremely high or low so as to make it an entirely erroneous assessment. See the decision of the Federal Court in Tan Sri Khoo Teck Puat & Anor v. Plenitude Holdings Sdn Bhd; [1994] 3 MLJ 777; [1995] 1 CLJ 15; [1995] 1 AMR 41.

[8] To appreciate the arguments concerning the loss of rental/loss of use of the bungalow, and apportionment of liability, it is necessary to set out a timeline of events.

The Litigation Leading To Reassessment Of Damages Against The 5th Defendant

[9] The original trial Judge held the 1st and 2nd Defendants 100% liable with damages to be assessed by the Senior Assistant Registrar, while dismissing the claims against the 3rd, 4th and 5th Defendants, in 2013.

[10] On 12 January 2015, the Court of Appeal set aside the High Court judgment.

[11] The Court of Appeal made various orders and apportioned liability of 30% to the 1st and 2nd Defendants, 40% to the 4th Defendant, and 30% to the 5th Defendant. Only the 3rd Defendant was not found liable. An assessment of damages was ordered. It was subsequently heard by the Deputy Registrar.

[12] On 2 February 2021, the Deputy Registrar dismissed the Plaintiffs' claims entirely.

[13] On 23 June 2021, on appeal, Nazlan J (as he then was) allowed the claims for repair and rectification of the bungalow in the sum of RM1,171,012.00 and aggravated and/or exemplary damages in the sum of RM300,000.00, but not loss of rental/loss of use of the bungalow and their other claims

[14] On 30 September 2021, the 5th Defendant failed to set aside the assessment and judgment on the grounds of non-service of the Writ and Statement of Claim, and that the legal firm Messrs Lin Coln & Co had never been appointed to act for him.

[15] Aggrieved by the dismissal of his application to set aside the judgment by the High Court , the 5th Defendant appealed.

[16] On 8 November 2022, the Court of Appeal set aside the assessment by Nazlan J (as he then was) and ordered the reassessment to be heard before the High Court in respect of the 5th Defendant. That was how the reassessment came before Nik Hasmat Binti Nik Mohamad J on 1 November 2023 (by way of an appeal against the decision of the Deputy Registrar), and it is now the subject of the appeal before us.

[17] On 17 November 2022, separately, the appeals by the Plaintiffs and the 1st and 2nd Defendants came before the Court of Appeal. The net result was that the 1st and 2nd Defendants had to pay the Plaintiffs loss of rental/loss of use of the bungalow (RM2,171,570.00), repair and rectification of the bungalow (RM1,171,012.00) and aggravated and/or exemplary damages (RM300,000.00), with liability as apportioned earlier.

[18] So much for chronology